May 16, 2014

PLF Urges Washington State to Recognize the Viability of Temporary Takings Claims

By Brian T. Hodges Senior Attorney

Earlier this week, PLF attorneys filed an amicus brief urging the Washington Supreme Court to review the takings case, 10 North Washington Ave., LLC v. City of Richland. In 2008, 10 North Washington Ave., LLC (NWA) purchased vacant land from the city to operate as a rail yard. NWA invested over $5 million to develop the property, and entered contracts with other companies for use of the rail yard. At the time, rail access via a spur track was authorized by a temporary service agreement between the city and a NWA sister company. However, in 2010, the city canceled the agreement and sold the access line to competitor railroad companies. The sale severed free rail access to NWA’s rail yard, forcing it to work as an agent of a competitor and significantly reducing the number of trains using the rail yard.

NWA sued the city for inverse condemnation. The takings claim alleged that, by severing access to the rail yard, the city took and/or damaged NWA’s right to use its property as a rail yard. The trial court noted, however, that free access could be reestablished if NWA built an alternate rail spur; thus, it concluded that the city’s interference was temporary in nature. The trial court dismissed the takings claim under Washington precedents holding that a government interference with private property must be “permanent or recurring” in order to give rise to a compensable taking. The court of appeals affirmed based on that rule.

PLF’s amicus brief argues that Washington’s “permanent or recurring” rule conflicts with both federal and state takings jurisprudence. As you may recall, the U.S. Supreme Court recently confirmed that “a taking need not be permanent to be compensable” in the PLF amicus case, Arkansas Game & Fish Comm’n v. United States (2012). And since “the federal constitution sets a minimum floor of protection, below which state law may not go,” Orion Corp. v. State (1987), a rule that is contrary to takings decisions from the U.S. Supreme Court creates unacceptable conflicts between state and federal constitutional law, as well as conflicts within state law.

PLF’s brief explains that property owners have an interest in clear, predictable, and workable rules for determining takings. Conflicting rules of law—like the “permanent or recurring” test—only operate to create uncertainty for property owners, regulators, and courts alike.

The Washington Supreme Court will likely consider whether to take review of this important case later this Summer.

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